Since the U.S. Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization, which held that there is not a constitutionally protected right to abortion, employers have been left questioning how to navigate the impact of this case on their workforce and benefits offerings. Post-Dobbs, it is up to each individual state to decide what limits to place on abortive care.
Abortion rights remain at the center of controversy, and the topic can be highly divisive. Despite the sensitive nature of the subject, many large multi-state employers have taken a public stance in support of abortion rights and have offered to provide travel expenses to employees in states like Oklahoma where the medical procedure is banned in the absence of medical necessity, rape, sexual assault or incest.
Employers should consider the legal implications in each state when deciding whether and how to provide travel benefits for abortive care to its employees as the employer could face civil or criminal penalties. For example, the Oklahoma Heartbeat Act (OHA) explicitly creates a private civil cause of action against entities that “[k]nowingly engage in conduct that aids or abets the performance or inducement of an abortion including paying for or reimbursing the costs of an abortion through insurance or otherwise . . . .” 60 O.S. § 1-745.39. Similarly, the Texas Heartbeat Act (THA) permits individuals to pursue civil action against entities providing employer coverage for abortive care.
At first glance, it would appear that employers in Oklahoma and Texas have no recourse to provide travel benefits to employees who wish to receive abortive care outside of the state. But state laws that relate to employee benefit plans are broadly preempted by the Employee Retirement Income Security Act (ERISA). A court may therefore find that the civil penalties outlined in the OHA and TSA are preempted under ERISA. Importantly, however, ERISA will not preempt state laws criminalizing abortion.
It is anticipated that states may update their criminal laws following Dobbs to specifically address the employer provided travel benefits issue. In fact, on July 7, 2022, a group of 11 Texas state legislators sent a threatening letter to a large international law firm with offices across Texas that the legislators believed “has been complicit in illegal abortions” performed in Texas. The letter foreshadowed upcoming Texas legislation that will impose additional civil and criminal sanctions on employers that pay for abortions or abortion travel—regardless of where the abortion occurs and regardless of the law in the jurisdiction where the abortion occurs.
The letter emphasized the legislation would empower district attorneys to prosecute abortion-related crimes. The letter also suggested litigation was on the horizon against the law firm for its alleged abortion-related activity.
The proposed Texas legislation may provide insight into what is to come for other conservative states seeking greater enforcement of its abortion laws. Employers should continue to monitor state abortion laws and keep reviewing its benefits offerings for compliance.
* This article first appeared in The Journal Record on July 22, 2022, and is reproduced with permission from the publisher.